ST. LOUIS (CN) – Upholding a statewide injunction, the Eighth Circuit found Wednesday that an Arkansas law prohibiting panhandling is a violation of freedom of speech.
In 2017, the American Civil Liberties Union of Arkansas sued the state on behalf of Michael Andrew Rodgers and Glynn Dilbeck, who were cited, arrested, prosecuted and convicted of loitering with intent to beg under state law. The ACLU claimed the law violates their right to free speech.
Rodgers is a disabled veteran who lives and begged in Garland County. Dilbeck is homeless and begged in Benton County. The named defendant is Colonel Bill Bryant, director of the Arkansas State Police, whose officers enforce the law.
In a September 2017 preliminary injunction, U.S. District Judge Billy Roy Wilson called the law “plainly unconstitutional” and said the state had failed to “satisfy the rigorous constitutional standards that apply when government attempts to regulate expression based on its content.”
Arkansas argued for dismissal before the Eighth Circuit, claiming the plaintiffs have no standing because the law has not chilled their speech.
Lawyers for the plaintiffs countered that the law did in fact chill their speech. For example, Rodgers is now forced to beg in the rural areas more often than in the city, and has to hide his sign at times.
Writing for the majority of an Eighth Circuit panel, U.S. Circuit Judge Michael J. Melloy, a George Bush appointee, rejected Arkansas’ argument that the district court “gave no rationale for enjoining enforcement as to all beggars” in the state.
“The district court specifically found that: (1) Arkansas’s anti-loitering law is ‘plainly unconstitutional’; (2) Arkansas’s public interest ‘is best served by preventing governmental intrusions into the rights protected under the Federal Constitution’; and (3) ‘preventing [Arkansas] from enforcing a law that is plainly unconstitutional’ would cause ‘no injury,’” the judge noted.
Melloy added, “These findings were sufficient to justify the district court’s imposition of a statewide preliminary injunction, particularly because they in no way depended on facts unique to Rodgers and Dilbeck.”
Chief U.S. Circuit Judge Lavenski R. Smith, also a Bush appointee, concurred with Melloy.
Bettina E. Brownstein, the lead attorney cooperating with the ACLU of Arkansas, said in an interview that Arkansas could not prove that the law was narrowly tailored.
“We were pretty confident that the law was on our side that there was a violation of our clients’ constitutional right,” Brownstein said. “We were confident, but you never know. It’s been a long-awaited ruling, but we’re very pleased.”
The law in question allowed for the arrest and prosecution of anyone standing or remaining “for the purpose of asking for anything as charity or a gift” in “an aggressive or threatening manner.”
The ACLU claimed the law is a content-based restriction, given arrests depend solely on the content of one’s speech. Only if a person is “loitering” for the purpose of asking for charity or a gift can they be prosecuted under the law.
U.S. Circuit Judge David R. Stras, a Donald Trump appointee, concurred in part and dissented in part. Stras agreed that the plaintiffs are likely to prove the law violates their First Amendment rights, but disagreed on the lower court’s injunction barring police from enforcing the law at any time, against any one, based on the harm of two individuals.
“To be sure, as the court claims, showing a strong likelihood of success on the merits generally entitles a plaintiff to a preliminary injunction in First Amendment cases. But this maxim is not absolute and only gets the court so far,” Stras wrote. “After all, a preliminary injunction ‘does not follow as a matter of course from a plaintiff’s showing of a likelihood of success on the merits,’ even in First Amendment cases, and the district court must still consider the other factors and show its work. … Here, the district court did not do either, much less explain why a universal preliminary injunction was appropriate or necessary.”
Attorneys from the Arkansas Attorney General’s Office did not immediately respond Wednesday to an email requesting comment.
A previous Arkansas anti-begging law was also ruled unconstitutional by a federal judge. In 2017, the Arkansas General Assembly responded by passing the law at issue with similar wording and the same effect.